Virtual Reality, Augmented Reality, and Emerging Theories of Liability

Kelley Scott
Spring 2017
Law and Technology

1
I. Introduction

Ray Kurzweil, one of the leading inventors of our time, famously discussed emerging

technologies and found that [a]n analysis of the history of technology shows that

technological change is exponential, contrary to the common-sense intuitive linear view.1

Kurzweil's Law, also known as the Law of Accelerating Returns, is relevant to emerging

legal technologies such as augmented and virtual reality, even though they are in their

infancy. Dealing with emerging legal issues in these technologies is important since we

won't experience 100 years of progress in the 21st century--it will be more like 20,000

years of progress (at today's rate).2

The rapid pace at which technology is evolving has created a lag between the

development of new technologies and the legal and ethical oversight that governs them.3

Emerging technologies, including augmented and virtual reality as enhancement

technologies, will fundamentally change the practice of law in several areas. Emerging

technology in the sphere of virtual reality and augmented reality is not just an important

topic; it is arguably the one of the most important topics as it relates to the future of

emerging regulation and liability standards. This paper will examine historical advances in

human technological evolution in the context of the exponential computational growth of

the last 40 years and the advent of modern virtual reality and augmented reality software

and hardware. It will posit a framework for the regulation of these enhanced visual and

1
Kurzweil, The Law of Accelerating Returns (March 7, 2011), available at www.kurzweilai.net/the-
law-of-accelerating-returns.
2
Id.
3
Stephanie Noble, Researching Emerging Technology, Colo. Law, August 2013, at 103.

2
sensory systems as they are utilized in video games. It will also seek to explore the legal

issues rooted in the different types of human-game system interactions, both at the

manufacturer and end-user level. Finally, this paper will seek to use the fundamental

concepts of autonomy, agency, causation, intentionalism, and liability to look at the future

augmented and virtual reality systems and competing theories of liability as we approach

this new era of gaming technology.

II. Defining Virtual Reality and Augmented Reality

Before discussing potential liability issues, it is important to define what virtual

reality and augmented reality are, how they differ, and what their modern day and

potential future applications consist of. Early scholars defined virtual reality as:

a medium, like the telephone or television. This new medium typically is

defined in terms of a particular collection of technological hardware,
including computers, head-mounted displays, headphones, and motion-
sensing gloves. The focus of virtual reality is thus technological, rather
than experiential; the locus of virtual reality is a collection of machines.4

Defining virtual reality in such a way is easy to understand, and it appeals to

manufacturers of such devices. However, it fails to provide the necessary background for

communication researchers, policymakers, software developers, and media consumers5

since it does not provide the necessary insight into the processes or potential affects, some

dangerous, makes regulation difficult, and does not give potential consumers adequate

information to have settled expectations of what a virtual reality gaming experience might

entail when compared to other types of gaming hardware.

4
Steuer, Jonathan. Defining virtual reality: Dimensions determining telepresence. Journal of
communication 42.4 (1992): 73-93.
5
Id. at 74.

3
 The term virtual reality was coined by was coined in 1989 by Jaron Lanier, who was

the CEO of VPL Research, Inc. VPL Research Inc. was an early manufacturer of gloves,

goggles, and other VR products at that time.6 In short, the term applies to both virtual

reality systems, such as Google Glass, Oculus Rift, Google Box, and other sorts of wearable

interactive hardware, as well as the software driving these things. In addition, however,

virtual reality also refers to the experience of presence that one can feel when utilizing

this type of hardware in a gaming experience. Virtual reality in this way acts as a virtual

extension of ones self7; this concept is important when discussing potential areas of

liability that utilize some sort of physical harm requirement, as well as in discussions of

expectations of privacy, consent, and domain over ones person.

Augmented reality differs from virtual reality in several ways. These technologies

have been described as a class of displays on the reality-virtuality continuum.8 Although

theoretically less invasive due to the fact that it does not completely overwrite the senses

of the user with virtual stimulus, augmented reality is may actually pose greater risk

because the immersive quality can exceed that of virtual reality, given that there is a

fundamental juxtaposition of what is real and what is simulated by the hardware/software

being used.

Augmented reality is defined by four general capabilities: It combines real and

virtual objects in a real environment, runs in real-time and mobile mode, registers

6
Krueger, M. (1991). Artificial Reality (2nd ed.) Reading, MA: Addison-Wesley.
7
Geiger, Christian, et al. "A framework for the structured design of VR/AR content." Proceedings of the
ACM symposium on Virtual reality software and technology. ACM, 2000.
8
Milgram, Paul, et al. Augmented reality: A class of displays on the reality-virtuality continuum.
Photonics for industrial applications. International Society for Optics and Photonics, 1995.

4
(aligns) real and virtual objects with each other, the virtual augmentation is based on

dynamic, 3-D objects (e.g., interactive, deformable virtual characters).9 These capabilities

are similar to that of virtual reality, and many of the concerns discussed regarding liability

for current and future video game applications are shared between the two. However, in

some circumstances, the nature of augmented reality may shift the onus to the

manufacturer to provide a means for the user to determine what is real and what part of

the world is augmented.

III. History of Virtual and Augmented Reality in Gaming

Gaming companies have been attempting to apply virtual reality and augmented

reality technologies for many years. Sega Master System released 3D glasses in the 1980s

that paired with games such as Space Harrier, Klaxxon 3D, and Missile Defense10. However

this early foray into three dimensional gaming was not as profitable as Sega hoped it might

be. The Nintendo Virtual Boy was hyped as the first portable console that was hyped to be

able to display three-dimensional graphics and provide an immersive gaming experience.

However, many found the technology and user interface to be lacking. Some users felt

queasy using the system, and the user interface was clunky and made gaming difficult.

In the 1990s, virtual reality entered the arcade gaming scene, and many different

racing, fighting, and flying simulations enjoyed moderate success. Virtuality Group, one of

the leaders in this gaming technology at the time, introduced a home version using Phillips

9
Papagiannakis, George, Gurminder Singh, and Nadia MagnenatThalmann. "A survey of mobile and
wireless technologies for augmented reality systems." Computer Animation and Virtual Worlds 19.1
(2008): 3-22.
10
Workman, R. A Brief History of Video Game Virtual Reality, and Why This Time Will be Different.
2014. Prima.

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Electronics technology in 1995.11 Although priced moderately, the unit failed to grasp a

large market share, and was soon discontinued.

IV. Modern Day Applications

Virtual reality and augmented reality have enjoyed a resurgence recently, as

technology has advanced to the point where the hardware/software is truly affordable, and

is sufficiently advanced to be able to create a truly immersive gaming environment. As

mentioned before, Oculus, Sonys Morpheus Project (now named as Playstation VR), and

HTC Vive, Samsungs Gear VR, Google Daydream, Glass, and Cardboard are all recent

projects that have enjoyed varying degrees of success.

Augmented reality has also experienced a resurgence in gaming. The most obvious

example of this is Niantic/Nintendos Pokemon Go, but the background for Pokemon Go

was based on an earlier game by Niantic called Ingress. Pokemon Go was wildly popular12

at its inception, causing some major liability questions regarding use of augmented reality

in mobile gaming. Both games use mapping to simulate a virtual world that is tracked by

the players movements, and while interest has waned due to several issues, it still enjoys

moderate success. No doubt there will be more games that utilize this feature in the future.

It is not difficult to imagine a scenario where mobile VR/AR as well as advanced

wearables that can affect all of the senses become available to the general public for a

reasonable price. The Intel 4004 was released in 1971 and was their first commercially

available CPU from Intel. It had a clock rate of 740 kHz. The Raspberry Pi 2 clocks at

11
Id.
12
Om Malik, Pokmon Go Will Make You Crave Augmented Reality, THE NEW YORKER (Jul. 12, 2016), http://
www.newyorker.com/tech/elements/pokemon-go-will-make-you-crave-augmented-reality;

6
1GHz(x4), with better instruction sets. With this in mind, the Raspberry Pi 2 is likely many

thousands of times faster than the Intel 4004. In addition, computers available at the time

ranged from approximately two thousand dollars all the way to nearly forty thousand for

the first portable computer system. The Pi 2 costs around 40 dollars. The rapid advances

and lower costs of virtual reality systems will likely mirror that of computers, and for this

reason, we may soon have extremely advanced VR/AR gaming systems available for mass

consumption.

.Identifying Potential Legal Issues

a. Virtual Violence

The fundamentally immersive nature of virtual reality and augmented reality will

change the way that gamers engage with each other. Technology may soon provide a

technological means to experience the sensations of real interactions with one another,

absent physiological consequences. This creates a potential for interpersonal violence, due

to the strong sense of presence that virtual and augmented reality create for the end-user.

User interactions based on this sense of presence may have the ability to cause real world

physical and psychological consequences to those who use the technology. The question

arises: How should the law deal with these circumstances when they do arise? Virtual

reality may force us to confront complicated questions about how we define acts of

violence, and how significant we find physical consequences, as opposed to the mere

subjective experience of violence.13

13
Jaclyn Seelagy, Virtual Violence, 64 UCLA L. Rev. Discourse 412 (2016)

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 One example that has been put forth is that if a child was to undertake

dismembering individuals or torturing a truly convincing depiction of a person in a video

game, so that the experiences of performing either act were indistinguishable from

performing the real thing, then one can naturally conclude that the child may suffer from an

intensely adverse reaction.14

Additionally, if real soldiers return from real wars with real cases of psychological

damage such as Post-traumatic Stress Disorder (PTSD) or shellshock, it very well may

be that the Call of Duty of the future could, by simulating reality to a sufficiently high level,

impart varying degrees of psychological harm on players.15

Alternatively, VR has been used to help treat soldiers returning from Iraq who suffer

from PTSD.16 The doctors and scientists who were responsible for this application of

VR/AR gaming technology found that, the best way to treat anxiety disorders such as fears

of heights and flying is the gradual, systematic exposure to the stimuli that cause anxiety ....

With PTSD caused by war this is more difficult, so we are using virtual reality to create

imagined exposure.17 They were extremely successful in this application, finding that,

14
Id.
15
Eric T. Gerson, More Gore: Video Game Violence and the Technology of the Future, 76 Brook. L. Rev.
1121, 1140-43, (2011) (exploring the likely possibility that virtual reality will be a part of future video
game technologies and its attendant difficulties)
16
Nic Fleming, Virtual Iraq: Soldiers Treated with Video Games, The Telegraph (Feb. 19, 2007, 12:01
AM), http:// www.telegraph.co.uk/news/worldnews/northamerica/usa/1543157/Virtual-Iraq-Soldiers-
treated-with-videogames.html.
17
Id.

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80% of the treatment completers ... showed both statistically and clinically meaningful

reductions in PTSD, anxiety, and depression symptoms.18, 19

However, this ability to immerse soldiers in environments that could trigger the

stimuli that were responsible for their PTSD shows a darker side of virtual reality and

augmented reality. The analog to this is that it is likely possible, given the immersive nature

of VR/AR in gaming, to create stimuli that are severely disturbing20 to some players. Some

children or adults with predispositions to psychoses or who have suffered previous trauma

may be affected by stimuli that others may not be.21 The manufacturers and users of these

types of video games are engaging in not only an exchange of ideas, [but also] an exchange

of experiences as well.22

As previously noted, propensity for psychological damage to players of video games

that have aspects of virtual violence will depend on several factors inherent in the people

using the games. Some gamers may be egg-shell Plaintiffs due to personal traits like age,

extent of desensitization, and past trauma23. The age of the gamer will likely affect his or

18
See generally Naomi Josman et al., BusWorld: An Analog Pilot Test of a Virtual Environment
Designed to Treat Posttraumatic Stress Disorder Originating from a Terrorist Suicide Bomb Attack, 11
Cyberpsychology & Behav. 775 (2008) (analyzing test results of a virtual reality system intended to help
PTSD sufferers)
19
Albert Rizzo et al., Development and Clinical Results from the Virtual Iraq Exposure Therapy
Application for PTSD, 1208 Ann. N.Y. Acad. Sci. 114, 122, available at
http://ict.usc.edu/files/publications/Rizzo_ IEEEXplore.pdf.
20
Arriaga, Patrcia, et al. "Are the effects of Unreal violent video games pronounced when playing with a
virtual reality system?." Aggressive behavior 34.5 (2008): 521-538.
21
Gersen at 1143-1145.
22
Robert Bryan Norris, Jr., It's All Fun and Games Until Someone Gets Hurt: Brown v. Entertainment
Merchants Association and the Problem of Interactivity, 13 N.C.J.L. & Tech. On. 81, 10203 (2011)
23
Seelagy at 34.

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her degree of immersion in the game, which by nature will lead to differences in how

aware a user is that what they experience is not physically real.

Some experiences will have no effect on some users and traumatize others, such as

phobias and triggers of past trauma. Other factors affecting these harms might be more

legally relevant than the choice of victim. Technological change and variation that affects

the extent of presence, for instance, will affect how much harm an experience can do.

Extreme immersion with several senses contributing to the experience, potentially creating

a high degree of presence, will probably come closer to real violence in the harm it does

than low levels of presence involving only a few senses. Recently, scientists have mapped

the brains interaction with virtual reality systems, and it was shown that activation of the

sensory networks related to the various senses was identical to actual real world stimulus

in sufficiently immersive environments.24 If a game is equipped with hardware that has the

potential to cause actual pain, an experience that triggers this ability will obviously affect

that person more strongly than a game that does not have this type of immersion. Similarly,

games that utilize hardware that can affect multiple senses, i.e. touch, smell, vision,

auditory inputs, taste, or direct neural stimulation will increase the immersion felt by the

user. These types of equipment may also be more difficult to remove or exit the gaming

experience from. Virtual reality equipment that a user cannot readily remove or exit will

probably increase the damage done by any potentially harmful experience, because it will

extend the duration of the experience and make the user feel more trapped. Whatever form

24
Mellet, Emmanuel, et al. Impact of the virtual reality on the neural representation of an environment.
Human brain mapping 31.7 (2010): 1065-1075.

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an attack takes, abuse of virtual reality is likely capable of causing serious psychological

harm under certain circumstances.25

b. Tort Protections for Virtual In-Game Property

Some courts have applied trespass law to online activity in the context of servers

and e-mail.26 If virtual land may qualify as a legally cognizable property interest, then a

person who enters another virtual land has committed the tort of trespass. Given the

relatively open nature of virtual worlds, it is likely that there will be many instances of

players accidentally or intentionally intruding on otherwise private areas. In these

circumstances, it is clear that the remedy available would be limited by the harm inflicted.27

Thus, a virtual bystander who wanders into another's property inflicts only de

minimis injury that is not worth litigating. However, other actions may warrant legal

action.28 Moreover, if virtual land is economically productive, in the cases of rents or

business, then trespasses that interfere with that business may amount to a seizure and

be recoverable. Ultimately, this would only be a speculative approach, given the unsettled

status of virtual property, and the jurisdictional difficulties of an online tort are beyond the

scope of the current law and this Comment's inquiry.

c. Intentional Infliction of Emotional Distress

25
Norris at 102.
26
See e.g. Sotelo v. Direct Revenue, 384 F. Supp. 2d 1219 (N.D. Ill. 2005) (applying trespass elements to
computers); CompuServe, Inc. v. CyberPromotions, 962 F. Supp. 1015 (S.D. Ohio 1997) (applying
trespass elements online).
27
Allison Fass, Sex, Pranks and Reality, Forbes, July 7, 2007, available at
members.forbes.com/forbes/2007/0702/048.html (on file with the McGeorge Law Review). John
Edwards' campaign hoped to use Second Life as platform for connecting with voters. Instead the
campaign headquarters was virtually vandalized.
28
Id.

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 Any gamer who has been involved in multplayer online experiences has

encountered a troll, also known as a griefer.29 A griefer is is a player in a multiplayer

video game who deliberately irritates and angers other players within the game, often

using aspects of the game in unintended ways.30 A griefers goal is to cause distress to his

victims in whatever way possible. This type of player creates the potential for a cause of

action due to virtual reality/augmented reality interactions under a theory of intentional

infliction of emotional distress.31 This type of cause of action has a high benchmark for it to

be viable, since [there] is no occasion for the law to intervene in every case where

someone's feelings are hurt. The law only intervenes when the hurt is so intense that no

reasonable man could be expected to endure it.32 These types of claims are purposefully

difficult to pursue and require an evidentiary showing as well as a showing that the

behavior in question must be so outrageous in character, and so extreme in degree, as to

go beyond all possible bounds of decency, and be regarded as atrocious, and utterly

intolerable in a civilized community.33 With this in mind, the tort of intentional infliction of

emotional distress will likely only be available in the most extreme situations.

Viability is also a problem with these types of suits. Most online players, even in

VR/AR applications, are anonymous. The only possibility for discovering their identity is to

obtain that information from the gaming company who runs the server. Legal action may

29
Warner, Dorothy; Raiter, Mike (2005). "Social Context in Massively-Multiplayer Online Games
(MMOGs): Ethical Questions in Shared Space" (PDF). International Review of Information Ethics. 4
(December).
30
Id.
31
Benjamin Tyson Duranske, Virtual Law: Navigating the Legal Landscape of Virtual Worlds at 61
(2008).
32
Restatement (Second) of Torts 46 cmt. d (1969).
33
Id.

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be difficult or impossible due to these types of pre-suit costs and uncertainties. One

possible solution is to make game manufacturers liable for the conduct of their users.

However, this will likely fail as discussed infra.

d. Third Party Liability for Intentional Infliction of Emotional Distress

Another option may be to file a tort suit against the manufacturer or administrator

of a game.34 This cause of action would be predicated on a theory that the game

manufacturer negligently coded and regulated a VW in such a manner to allow a griefing

attack to inflict an injury.35 A party that is positioned to redress another's bad acts through

exercising control, or capable of passing on costs associated with liability and thus

impacting activity levels, may be subject to liability for the acts of a third-party.36 Game

manufacturers exercise complete control over VR/AR landscapes via coding and contracts.

Nevertheless, providers may argue they should not be held responsible for the deliberate

acts of third parties, especially if the acts are in violation of rules they have established. The

intervening acts of a third party will not absolve a defendant of negligence liability if the

plaintiff relied on the defendant to take preventative steps or the defendant failed to

protect the plaintiff even though they were capable of it.37

34
Pixeleen Mistral, Dreamland Accuses LL of Aiding & Abetting Griefers!!!, Alphaville Herald, Nov. 13,
2007, (Anshe Chung's Second Life business sent patrons a notice urging a class action law suit against
Linden Labs to motivate Linden Labs to do something about griefers).
35
Levine, Alec. Play harms: liability and the play conceit in virtual worlds. McGeorge L. Rev. 41 (2009):
929.
36
Bradley A. Areheart, Regulating Cyberbullies Through Notice-Based Liability, 117 Yale L.J. Pocket
Part 41, 1 (Supp. 2007) (noting victims of cyberbullying, like victims of griefing attacks, are generally left
with no recourse).
37
Levine at 964

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 This argument is mostly moot on the Federal level; the Communications Decency

Act of 1996 effectively immunizes Internet Service Providers from tort liability. The

original purpose of the CDA was to provide regulation of pornographic material on the

Internet, but section 230 added sweeping protection for Internet companies, directing, No

provider or user of an interactive computer service shall be treated as the publisher or

speaker of any information provided by another information content provider.38 Current

judicial interpretations39 of section 230 provide for broad immunity under the CDA which

would likely be imputed to gaming companies in situations involving third parties, since

under the CDA, they are not liable for these types of vicarious liability claims. Thus

although the game manufacturers represent deep pockets, current Federal law would not

support the claim.40

e. Negligence

Rather than purely psychological injury, there is also the potential for direct

physical harm to occur as a result of virtual and augmented reality systems. The goals of

traditional tort liability are many: to reduce the possibility of harm, to promote

fundamental fairness, to make the victims of harm whole, to provide a nonviolent and

established means of dispute resolution, to fairly allocate loss, to promote communal

values that we as a society deem important, and to allow for the smooth function of

civilization. Rational conduct by financially motivated actors also reduces harm by creating

38
U.S.C. 230(c)(1) (2009).
39
See eg. Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) (finding America Online immune to
defamation section 230 of the CDA); see also Doe v. MySpace, Inc. 474 F. Supp. 2d 843 (W.D. Tex.
2007) (finding a website operator immune under the CDA).
40
Id at 965.

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incentives to engage in behavior that avoids it, to the extent that such behaviors are not

more costly than the alternatives. By creating a framework for loss shifting from injured

victims to tortfeasors, tort law deters unsafe conduct. A purely financially motivated

rational actor will reduce potentially harmful activity to the extent that the cost of

accidents exceeds the benefits of the activity.41

In the context of emerging technology, however, it is important to examine two

specific liability frameworks for negligence: traditional negligence and strict liability. As

there is little if any existing case law setting the criteria for injury caused by virtual or

augmented reality, an examination of both standards histories can shed light on which is

most appropriate. Under a traditional negligence standard, actions that cause injury

intentionally, or without regard for established reasonable norms of conduct create liability

for said actions. Liability in this case is based on what a hypothetical, objectively reasonable

person would have done in the same or similar situation. 42

The touchstone of reasonableness is a duty of care owed to the entity to which harm

has been caused. A cause of action based on negligence requires proof of four elements. The

defendant owes (1) a duty of care to the plaintiff based upon a certain standard of conduct,

which (2) has been breached, the breach having (3) proximately caused (4) the injury

complained of. However, the concept of duty is a legal fiction; it does not mean that

individual inquiry is always done into the reasonable nature of the actions taken. To the

contrary, it calls for a legal conclusion as to whether the plaintiff's unfortunate reliance

41
See, e.g., Priest, G., Satisfying the Multiple Goals of Tort Law, 22 Val. U. L. Rev. 643, 648 (1988),
also generally the classic case of United States v. Carroll Towing Co. 159 F.2d 169 (2d. Cir. 1947).
42
Abbott, R. Allocating Liability for Computer Generated Torts. Draft working paper, 2016.

15
upon the defendant's prudence is compensable.43 Courts avoid the laymans definition of

reasonableness and causation. A fictitious straw man stands in the place of the ordinary

reasonable actor. Proximate or legal causation is also the standard under a negligence

inquiry rather than actual causation. A duty generally will be held not to exist if the

defendant could not reasonably foresee injury being caused by his or her actions. That is to

say, [i]n practice, for a plaintiff to prevail in most personal injury cases he or she must

prove by a preponderance of evidence that the defendant owed the plaintiff a duty of

reasonable care, that the defendant breached that duty, that the breach caused the

plaintiffs damages, and that the plaintiff suffered compensable damages.44

Current tort law already has remedies for harms created through cyber-battery. The

key now is to show that the harms suffered by victims of cyber-battery are real, and that

these harms can be addressed through tort remedies. Current psychological research on

personality development, as well as research in the rapidly growing field of cyber-

psychology, can show a court that cyber-harms can meet the touching standard under the

Restatement of Torts:

The Restatement of Torts requires the object touched to consist of anything

so connected with the body or so far a part of the other's personality as to
be regarded as part of the plaintiff's person. However, it is not necessary
that the plaintiff's actual body [is] disturbed. This standard allows for the
possibility of an intangible object, such as a website or an avatar, qualifying
as part of the plaintiff's person, provided that the object is highly connected
to the plaintiff's body or personality. This research can show that digital
objects touched can be customarily regarded as part of the plaintiff's person.
Similarly, it is possible that the results of this research can show lawmakers
and judges that cyber-battery and its consequences are both real. By offering
expert testimony, a plaintiff can establish the offensive touching element, and
make out a prima facie case of cyber-battery. These same expert witnesses

43
W. Prosser & W. Keeton, Handbook On The Law Of Torts 76 N.1 (5th Ed. 1984) at 358.
44
Id.

16
 can speak out at bar functions and conferences, as well as write articles to
teach others about the harms of cyber-battery.45

Furthermore, virtual reality and augmented reality have clearly foreseeable risk

associated with them that have already caused injury to some gamers.46 A traditional

products liability examination of virtual reality and augmented reality is necessary. There

have been documented cases of users attempting to sit on a chair or object not physically

present in their space, only to fall down and be injured, in addition to cases of where the

user runs into very real objects not visible to them due to the immersive nature of VR. In

terms of augmented reality, the shock or scare from the superimposition of a non-real

object into the very real world may cause a user to fall, to be struck by a vehicle, or to turn

and run and strike something or fall off a cliff. These risks are increased when the game

encourages moving around, engaging with the real world, or engaging with virtual obejcts

in space, all of which are near-certain to be objectives in current or future VR/AR gaming.

Lawsuits may occur alleging that these products suffer from a design defect and/or fail to

sufficiently warn of their risks.47 However, AR/VR systems differ from many products

where strict liability or negligence has been imputed to the manufacturer. They do not

suffer a design defect solely due to their dangerous nature, but rather the danger is

inherent in their very purpose. Immersion is necessary for VR/AR to properly serve its

purpose as a gaming device. Consumers may only argue that the gaming manufacturers

failed to properly design the product to minimize the risk of harm to the degree possible.

45
Hoffman, Neal. Battery 2.0: upgrading offensive contact battery to the digital age. Case W. Res. JL
Tech. & Internet 1 (2009): 61 at 68 (internal citations omitted).
46
Andrew L. Rossow, Gotta Catch ... A Lawsuit? A Legal Insight into the Intellectual, Civil, and
Criminal Battlefield "Pokmon Go' Has Downloaded Onto Smartphones and Properties Around the
World, 16 J. Marshall Rev. Intell. Prop. L. 329, 343 (2017)
47
Id.

17
Arguments to the contrary may include that the customer was sufficiently warned and that

they assumed the risk by engaging with VR/AR game systems.

V. Conclusion

It is clear that much like in physical reality, gamers engaging in augmented or virtual

reality will have the desire to remain uninjured, both physically and psychologically. The

consequences of virtual gaming are such that a single act may have a huge range of

consequences, both on the user engaging in that action, on others involved in the virtual

world, and in the real, physical world.

This problem of foreseeability makes it difficult to establish laws that apply across

different VR/AR platforms and virtual environments. If there is not one set standard that

can reasonably be put down, it may be best to not try at this juncture. Allowing Courts to

take factual scenarios into account while setting rules would be a way to settle expectations

without chilling VR/AR development.

Varying types of liability for both psychological and physical harm, as well as

intentional infliction of emotional distress, negligence, and trespass to virtual property are

some of the issues that we may encounter in the future. There are also a multitude of other

legal issues, including but not limited to privacy, First Amendment Protections, and

criminal law and its applicability to intentional acts of violence committed in the virtual

world.

In the meantime, virtual communities may be best situated to determine what is

reasonable and what the risks of harm are in their particular gaming community. We have

18
precedent for this approach in existing law: When applying criminal law to acts during

sports, courts look to the rules and general practices of the sport in question.48

Virtual reality and augmented reality interactions may have the same physical and

psychological effects on gamers using these platforms, but they are not legally identical.

Users and developers must develop the standards of reasonableness, consent,

customization, limitations in hardware and software, and other means to combat legal

harms to the VR/AR gaming community. Virtual reality is extremely exciting in the area of

gaming, and it will provide an opportunity to develop the legal framework that may govern

many other portions of emerging technologies. In doing so, we must look at difficult legal

questions regarding tort liability, risk, and injury that occurs in the real and virtual

landscape.

48
Jeffrey Standen, The Manly Sports: The Problematic Use of Criminal Law to Regulate Sports Violence,
99 J. Crim. L. & Criminology 619, 626 (2009).

19